UNITED STATES DISTRICT COURT
FOR THE D]`STRICT OF COLUMBIA
CITIZENS FOR RESPONSIBI`LITY ANI)
ETHICS IN WAS]“IINGTON, et al.,
Plaintiff,
v. Case No. l:l4-cv-Ol4l9 (CRC)
FEDERAL ELECTION C()MMISSI()N,
Def`endant,
AMERICAN AC'I`ION NETWORK, INC.,
Intervenor Defendant.
MEMORANDUM OPINI()N
In 201 O, American Action Network (“AAN”)ma tax-exempt section 50](0)(4)
organization-~spent $1,065,000 on three versions of the following television advertisement,
which ran in the districts of three different candidates for Congress in the lead~up to that year’s
election:
[On”screen text:] Congress doesn’t want you to read this. Just like [candidate].
[Candidate] & N`ancy Pelosi rammed through government healthcare Without
Congress reading all the details $500 billion in Medicare cuts. Free healthcare for
illegal immigrants Even Viagra for convicted sex offenders So tell [candidate] to
read this; fn November, Fix the healthcare mess Congress made
A.R. 1722. The Federal Election Commission (“FEC”) reviewed this ad, along with nineteen
other AAN-sponsored communications and nine similar “electioneering communications”
sponsored by another non~prot'it, Americans for Job Security (“AJS”). Three Commissioners
concluded that the organizations’ spending on these ads should not be considered in evaluating
whether either entity’s “major purpose” was “the nomination or election of a candidate.”
Buckley v. Valeo, 424 U`.S. l, 79 (1976). On the basis of that analysisJ the FEC--in accordance
with the controlling votes of the three Commissioners-dismissed complaints against AJS and
AAN, concluding that neither organization was an unregistered political committee in violation
of the Federal Election Campaign Act (“FECA”).
Plaintit`f, Citizens for Responsibility and Ethics in Washington (“CREW”), which lodged
the complaints now challenges those dismissal decisions This Court previously dismissed
CREW’s claims to the extent that they relied on the Administrative Procedure Act (“APA”), but
that same opinion recognized that CREW had an “adequate, alternative means to challenge” the
FEC’s decision through FECA’s particularized judicial review mechanisms §ee CREW v_ FEC,
__ F. Supp. 3d __J 2015 WL 10354778, at *l (D.D.C. Aug. 13, 2015). The Couit now considers
cross-motions for summary judgment, the central dispute in which is whether the FEC’s
conclusion»»~“that there was no “reason to believe” the organizations in question had as their
“major purpose” the “nomination or election of a candidate”»-~was “contrary to law,” 52 U.S.C.
§ 30109(a)(8)(C). Finding that the controlling Commissioners premised their conclusion on an
erroneous interpretation of Supreme Court precedent and the First Amendment, the Court agrees
with CREW that the dismissals Were contrary to law. It will, accordingly, grant CREW’s motion
for summary judgment, deny the FEC’s and AAN’s cross-motions, and remand the case to the
FEC for further proceedings consistent with this Opinion.
I. Background
A. Statutorv and Regulatorv Framework
The FEC is a six-member, independent agency charged with administering FECA. §§g
52 U.S_C_ § 30106(b)(l) (tasking the Commission with “administer[ing], seek[ing] to obtain
compliance with, and formulat[ing] policy with respect to” FECA). Any person or entity may
file a complaint with the Commission asserting a FECA violation, following which the alleged
violator is given an opportunity to respond in writingl l_c;L § 301{)9(a)(l). If four or more
Commission members subsequently find there is “reason to believe” that FECA was or will soon
be violated, then the FEC must investigatel Li_._ § 30109(a)(2). Otherwise--i.e., where three or
fewer Commission members have “reason to believe” FECA has been violatedmthe complaint is
dismissed _S_e§ i_d__ § 30106(c) (“[T]he affirmative vote of 4 members of the Commission shall be
required in order for the Commission to take any [enforcernent or other authoritative] action.”).
In the event of dismissal, the controlling group of Commissioners_here, those voting against
enforcement-~must provide a statement of reasons explaining the dismissal decisionl _S_e_e_ fill
v. Nat’l Rer)ublican Senatorial Comm. (NRSC), 966 F.2d 1471, 1476 (D.C. Cir_ 1992). Any
“party aggrieved” by an FEC dismissal decision “may file a petition” for this Court’s review. I_dm.
§ 30109(a)(8)(A).
One way that FECA regulates federal campaign financing is by requiring disclosures for
certain types of election-related communications The Supreme Court has repeatedly recognized
that such disclosure regimes accomplish much while costing relatively little. On the one hand,
disclosure “open[s] the basic process of our federal election[s] to public view,” hughey, 424
U.S. at 82, by “provid[ing] the electorate with information” concerning the sources and outlets
for campaign money, id at 66, and thus “minimiz[ing] the potential for abuse of the campaign
finance system,” McCutcheon v_ FEC, 134 S_ Ct. 1434, 1459 (2014). On the other hand,
disclosure imposes a relatively “less restrictive”-“»though not negligible-~First Amendment
burden on those subject to its requirements McCutcheon, 134 S. Ct. at 1460; see also Citizens
United v. FEC, 558 U.S_ 310, 369 (20]0); FEC v. Massachusetts Citizens for Life, Inc. (MCFL),
479 U.s. 238, 262 (1986).
FECA’s disclosure requirements can be triggered by one~time events When any entity
spends more than $250 on an “independent expenditure”--"a communication not coordinated
with a candidacy but “expressly advocating the election or defeat of a clearly identified
candidate,” 52 U.S.C. § 30101-the organization must disclose the date and amount of that
expenditure, as well as the identities of those who contributed and earmarked more than $200 for
the communication Similar reporting requirements apply when an entity spends more than
$10,000 on “electioneering communications,” a broader category including “broadcast, cable, or
satellite” communications that “occur less than 60 days before a general [election or] 30 days
before a primary,” are “targeted to the relevant electorate,” and which “refer{,]” without
expressly advocating for or against, “a clearly identified [federal] candidate.” id § 3{)104(f)(l)m
(3). For expenditures on electioneering communications meeting the $10,000 threshold, the
entity must disclose the identities of those who contributed and earmarked an aggregate of
$1,000 or more for that expenditure 52 U.S.C_ § 30104(f)(2)(F).
More extensive disclosure rules govern “political committees” 52 U_S.C. § 30101.
Poiitical committees must, for example, appoint a treasurer, keep records with the names and
addresses of contributors and fife with the FEC regular reports during a general election year
with certain accounting information, including amounts spent on contributions and expenditures
l_d_. §§ 30102-04. _An entity must register as a political committee when it satisfies two separate
conditions The first is straightforwardly spelled out in FECA; The entity in question must
contribute or expend more than $l,OOO in a calendar year for the purpose of influencing a federal
election id § 30i01(4)(A). The second eondition, imposed pursuant to a Supreme Court-
authored narrowing construction, is at issue here and has previously been the subject of much
dispute: If not controlled directly by a political candidate, the entity’s “major purpose” must be
“the nomination or election of a candidate.” §u§_kley, 424 U.S. at 79; se§plso MQIL, 479 U.S.
at 262.
Rather than adopt a rule specifically defining the contours of this “major purpose”
limitation, the FEC has pursued an adjudicative, case-by-case approach, an implementation
choice which has been litigated, scrutinized, and ultimately validated by a fellow court in this
District. Shays v. FEC, 424 F. Supp. 2d 100 (D.D.C. 2006). In response to a remand for further
explanation regarding why adjudication and not rulemaking was the proper enforcement method,
sue imd.“ at 108, the Commission explained in a notice published in the Federal Register that
“determining political committee status . . . requires” a fact-intensive analysis of an
organization’s “overall conduct,” meaning “whether its major purpose is Federal campaign
activity (i.e., the nomination or election of a Federal candidate).” Political Committee Status, 72
Fed. Reg. 5595, 5597 (Feb. 7, 2007) (Supplemental Explanation and Justification (“SE & J”)).
The court accepted that explanation deferring to the FEC’s judgment that evaluating an
organization’s major purpose required “a very close examination of various activities and
statements” Shays v. FEC, 511 F. Supp. 2d 19, 30 (D.D.C. 2007).
B. Factual and Procedural Histolv
AJS, one of two organizations alleged by CREW to be an unregistered political
committee, was founded as a tax-exempt section 501(0)(6) organization or “[b]usiness league,”
in 1997. A.R. 48-50; 26 U.S.C. § 501(c)(6). Since then, as AJS explained in its response to
CREW’s administrative complaint, the organization’s consistent “message has been a simple
one: free markets and pro-paycheck public policy are fundamental to building a strong economy
and creating more and better paying jobs.” A.R. 50, 98 (citing AJS’s website). To spread that
message, AJS spent millions on “television, radio, newspaper[,j and direct mail advertising[,]
amongst other forms” of communication A.R. 19 (2009 Form 990 Tax Return). During its
early years, AJS’s efforts were not closely tied to elections For instance, between 2004 and
2006, AJS ran a series of advertisements none published or broadcast in the 30- or 60-day lead-
up to primaries or elections, promoting the repeal of the estate tax, and others advocating against
an asbestos trust fund A.R. 50~52. However, over time, AJS shifted to a more election-
focused approach.' ln 2008, the organization started li.mding “electioneering communications,”
and in 2010, it started funding “independent expenditures,” i.e., express advocacy for or against
certain candidates A.R. 52, 1393. Indeed, in 2010, out of roughly $12.4 million in overall
expendituresl AJS spent approximately $4.9 million on express advocacy advertising and an
additional $4.5 million on electioneering communications meaning that over three-fourths of its
spending was in some way tied to elections A_R. 1393-94
AAN, the other organization challenged by CREW, is a tax-exempt section 501(c)(4)
“{c]ivic” organization, founded in 2009. A.R. 1490-91, 1562; 26 U.S.C. § 501(c)(4). The
organization’s stated mission is to “create[], encourage[,] and promote center-right policies based
on the principles of freedom, limited government, American exceptionalism, and strong national
security.” A.R. 1490. To advance that mission, AAN has sponsored “educational activities” and
“grassroots policy events,” A.R. 1563, but the majority of its spending throughout the period in
question_mid-2009 through mid-2011---was on election-related advertising ()ver those two
years, AAN spent roughly $27.1 million in total; of that, a little more than $4 million was
devoted to independent expenditures (i.e., express advocacy for or against political candidates)7
1 Lacking data on AJS’s overall receipts and expenditures for the 2010 calendar year, the
FEC used AJS’s fiscal-year information--i.e., covering a period from Novernber l, 2009 to
October 3l, 2010-mas a proxy _Sg,_e_ A.R. 1463 n.lSl; A.R. 18.
_6-
and an additional $13.7 million was devoted to electioneering communications A_R. 1638. In
other words, well over half of itsspending during the period was election-related
Neither AJS nor AAN registered with the FEC as a “political committee_” CREW filed a
complaint With the FEC against AJS in March 2012 alleging that due to AJS’s extensive
campaign-related spending primarily leading up to the 2010 federal electionJ the organization
was an unregistered political committee in violation of FECA. A.R. 1-39. ln June 20l2, CREW
filed a complaint with the FEC against AAN, similarly alleging that its predominantly campaign-
related spending between 2009 and 2011 made it an unregistered political committee A.R.
1480~1552_ 'I`he FEC’s Office of General Counsel separately reviewed the complaints as well
as answers from AJS and AAN, and recommended concluding that there was “reason to believe”
both organizations were political committees having as their “major purpose federal campaign
activity,” and therefore in violation of FECA. A.R. 1411, 1659. l\l`evertheless, in June 2014, the
Commissioners deadlocked 3-to~3 with respect to both AJS and AAN on whether to commence
an investigation, dismissing CREW’s complaints accordinglyl A.R. 1434-35, l686-87.
The controlling group of Commissi\oners issued separate but similar statements for both
AJS and AAN, explaining their conclusions that there was no “reason to believe” either
organization was an unregistered political committee A.R_ 1438-69 (Controlling
Commissioners’ Statement of Reasons Regarding Dismissal of Complaint Against AJS) (“A}S
SOR”); A.R. 1690-1723 (Controlling Commissioners’ Statement ofReasons Regarding
Dismissal of Complaint Against AAN) (“AAN SOR”). First, the Commissioners found--and no
party here contests-~that both organizations “crossed the statutory threshold for political-
committee status by making over $1,000 in independent expenditures” in at least one calendar
year. A.R_ 1454, 1706. However, after considering each organization’s statements of purpose
and evaluating each entity’s “spending on campaign activities [as compared to] its spending on
activities unrelated to the election or defeat of a federal candidate,” the Commissioners
concluded that neither organization’s “major purpose” was the “nomination or election of a
federal candidate.” A.R. 1455, 1706.
To reach those conclusions the Commissioners made two key analytical decisions First,
they excluded from their “major purpose” inquiry all of AJS’s and AAN’s spending on
electioneering communications considering all of those communications to be “genuine issue
advertisements” unrelated to the election of candidates A.R. 145 7-58, 1709-102 As a result,
only spending on express advocacy was considered indicative of the relevant “major purpose.”
ida Second, the Commissioners considered spending only over the “lifetime” of the organization
in question, which for AJS implicated a span of fifteen years A.R. 1457-58, 1708-09.
Together, these choices left the Commissioners, when calculating the overall proportion of
spending reflecting the groups’ relevant “major purpose,” with a relatively small numerator and a
relatively large denominator. Thus, the Commissioners calculated that “during the course of its
history dating back to 1997, AJS spent over $50 million [to support its mission generally} but
2 AAN contends that the controlling Commissioners “did not . . . draw the line at
independent expenditures [i.e., express advocacy] in this case [but] instead left open the
possibility that electioneering communications that are the ‘functional equivalent’ of express
advocacy may be relevant to an organization’s ‘major purpose.”’ AAN’s Mem. Supp. l\/lot.
Summ. J. (“AAN’s MSJ”) 19. That may be true as a technical matter, but as discussed below,
the Commissioners never defined-eproperly or otherwise~the “functional equivalent” category
_Sg_e m note 10. Moreover, the whole of the Commissioners’ analysis regarding whether nine
separate electioneering communications sponsored by AJS and twenty such communications
sponsored by AAN were “genuine issue ads” amounted to a few summary sentences7 or about
one paragraph for each organization §ee A.R_ 1457 (AJ`S SOR), 1709 (AAN SOR). Perhaps
this is why the FEC itself acknowledges that “Commissioners determined that the relevant
universe of spending for determining the groups’ federal campaign spending was their
independent expenditures {i.e., on express advocacy].” FEC’s Mem. Supp. l\/lot. Summ. J.
(“FEC’s MSJ”) 36.
only $4.9 million-or a mere 9.8 percent»--of that spending was on express advocacy\” A.R.
145 8_ Similarly, the Commissioners concluded that the “roughly $4.l million that AAN spent on
independent expenditures [i.e., express advocacy] between fits founding in] 2009 and 2011 was
the totality of its spending . . . for the purpose of nominating or influencing the election of a
federal candidate and represented [only] approximately 15% of its total expenses during the
same period.” A.R. 1709
Following the FEC’s dismissal of the above complaints CREW filed a four-count
complaint in this Court alleging violations of FECA and the APA, and seeking a declaration that
the FEC’s dismissal decisions were contrary to law because they applied an incorrect
interpretation of the “major purpose” test. Compl. at 28-33. Mainly, CREW challenged the
Commissioners’ decision to exclude on First Amendrnent grounds an organization’s
expenditures that were not express advocacy from the category of spending indicating a
campaign-related “major purpose.” CREW also challenged the Commissioners’ consideration of
relative spending over the course of an organization’s lifetime_as opposed to within the most
recent calendar year-mas well as the Commissioners’ purported application cfa 50%-plus
spending threshold for relevant expenditures
This Court subsequently granted the FEC’s Motion to Dismiss all APA-related counts
and granted AAN’s Motion to Intervene as an additional Defendant. CREW has now moved and
Defendants have cross-moved for summary judgment on the remaining, FECA-related counts3
3 AAN--and not the FEC-argues that CREW lacks Article 111 standing before this
Court. The argument is that the five-year statute of limitations has run on CREW’s
administrative complaints and that therefore CREW cannot “demonstrate a significant
likelihood that a decision of [this] Court would redress its alleged injury,” Sp_l ectrum Five LLC v.
M, 758 F.Bd 254, 256 (I).C. Cir. 2014), since the FEC has a practice of not pursuing stale
enforcement actions even to obtain equitable relief such as political committee registration
AAN’s MSJ 38-43. But, as CREW points out, the AAN cites no “authoritative policy or rule of
w9_
Oppositions and replies have been filed, and a hearing was held on the motions4
II. Legal Standards
The Court will grant summary judgment “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). Under these circumstances where summary judgment is sought regarding
certain of the FEC’s dismissal decisions this Court will grant summary judgment to the
challenger only if the agency’s decisions are “contrary to law,” 52 U.S.C. § 30109(a)(8)(C),
meaning either that “the FEC dismissed the complaint as a result of an impermissible
interpretation of [FECA],” or that “the FEC’s dismissal of the complaint, under a permissible
interpretation of the statute, was arbitrary or capricious or an abuse of discretion.” Orloski v.
E§Q, 795 F.2d 156, 161 (D.C. Cir. 1986).
This same standard of review applies to all FEC decisions whether they be unanimous or
determined by tie vote In re Sealed Case, 223 F.3d 775, 779 (D.C. Cir. 2000) (“We have . , .
held that we owe deference to a legal interpretation [issued by the FEC} supporting a negative
probable cause determination that prevails on a 3-3 deadlock.”); l;JB_SQ, 966 F.2d at 1476 (“[l]f
the meaning of {FECA] is not clear, a reviewing court should accord deference to the
Commission’s rationale . . . {even in] situations in which the Commission deadlocks and
the FEC that would bar equitable enforcement” of its claim. Pls.’ Reply Mot. Summ. ll (“Pls.’
Reply”) 48 n.25. Nor has the FEC admitted to such a practice or addressed this issue in its
briefing or at the motions hearing This is fatal to AAN’s standing argumentl Finally, the mere
fact that the FEC has discretion to dismiss CREW’s complaint for another reason does not vitiate
the redressability of CREW’s claim. §ee FEC v. Akins, 524 U.S. ll, 25 (1998) (“Akins II”) (“If
a reviewing court agrees that the agency misinterpreted the law, it will set aside the agency’s
action and remand the case_even though the agency (like a new jury after a mistrial) might
later, in the exercise of its lawful discretion, reach the same result for a different reason”).
4 CREW made clear at the hearing on the paities’ motions that its challenges are limited
to the FEC’s articulation of the “major purpose” starrdara', as opposed to the agency’s
application of that standard The Court will limit the scope of its review accordingly
_10_
dismisses.” (citing Democratic Cong. Campaign Comm. v. FEC. 831 F.2d 1131, 1135 n.5 (D.C.
Cir. 1987) and Common Cause v. FEC 842 F_2d 436, 439 (D.C. Cir. 1988))). This follows
because the Commissioners voting for dismissal “constitute a controlling group for purposes of
the decision,” and so “their rationale necessarily states the agency’s reasons for acting as it did.”
nss;;, 966 1126 ar 14"16.5
Usually, when a court’s review turns on an interpretation ofFECA’s terms the “contrary
to law” standard involves a straightforward application of the familiar two-step framework
outlined in Chevron, U.S.A._ Inc_ v_ Natural Res. Def. Council. 467 U.S. 837, 842”43. §gg
moskj, 795 F.2d at 161-62 (D.C. Cir. l986) (applying Chevron analysis to evaluate the FEC’s
interpretation of the terms “contribution” and “expenditure” as defined by FECA).
But this is not a usual case CREW’s primary challenge regards the FEC’s understanding
of the constitutional dimensions of a Supreme Court-authored test which was itself developed to
5 CREW contends that none of the above precedent is good law after United States v.
Mead Corp., 533 U.S. 218 (200]), which held it improper to afford a tariff classification Chevron
deference because there was “no indication that Congress intended such a ruling to carry the
force of law.” _IL:I_. at 22l. The controlling Commissioners’ statement of reasons is akin to a tariff
ruling, CREW reasons since their decision “is not binding legal precedent or authority in future
cases and is not law.” Pls.’ Reply 8~9. That might be so, but the prospective, binding nature of
an agency’s interpretation is not the sole consideration regarding the applicability of Chevron
As the M_ead Court noted, the type of delegated authority warranting Chevron deference “may be
shown in a variety of ways as by an agency’s power to engage in adjudication . . . or by some
other indication of comparable congressional intent.” Mgad, 533 U.S. at 227. The court in
Sealed Case engaged in a thorough consideration of just such “indication[s],” observing that an
FEC enforcement decision, even one produced by deadlock, is “part of a detailed statutory
framework for civil enforcement . . . analogous to a formal adjudication,” that it “assumes a form
expressly provided for by Congress” and that ultimately it can result in the imposition of
criminal penalties 223 F_Bd at 780 (internal citations omitted). All of those considerations led
the court to conclude that an FEC enforcement decision “falls on the Chevron side of the line.”
I_d. In sum, seeing nothing in _Mmemamd that directly contradicts Sealed Case, the Court will abide its
“obligat[ion] to follow controlling circuit precedent.” United States v. Torres, 115 F_3d 1033,
1036(1;)_€. Cir. 1997).
_]1_
avoid potential constitutional infirmities ln other words the challenge turns directly and almost
exclusively on judicial precedent-§_u_ckl§y itself, but even more so a long line of First
Amendment-related cases in _B_i_i_c_k_l§y’s shadow. Under such circumstances Chevron can have
no sound place in evaluating whether an FEC interpretation is “contrary to law.” This is why a
near-unanimous D_C. Circuit, sitting en banc, rejected the FEC’s “plea for deference” on the
question of whether the Supreme Court had imposed the major purpose test in the first place,
concluding that the deference argument was “doctrinally misconceived.” A_kins v. FEC, 101
F.3d 731, 740 (D.C. Cir. 1996), vacated on other grounds 524 U.S. ll (1998).6 The court
elaborated that it was
not obliged to defer to an agency’s interpretation of Supreme Couit precedent under
Chevron or any other principle The Commission’s assertion that Congress and the
Court are equivalent in this respect is inconsistent with Chevron’s basic premise
Chevron recognized that Congress delegates policymaking functions to agencies
so deference by the courts to agencies’ statutory interpretations of ambiguous
language is appropriate But the Supreme Court does not, of course, have a similar
relationship to agencies and agencies have no special qualifications of legitimacy
in interpreting Court opinions There is therefore no reason for courts_the
supposed experts in analyzing judicial decisions--to defer to agency interpretations
of the Court’s opinions This is especially true where, as here, the Supreme Court
precedent is based on constitutional concerns which is an area of presumed judicial
competence
6 Defendants highlight that Akins was vacated and therefore has no binding effect §e§
FEC’s Reply Mot. Summ. J. (“FEC’s Reply”) 7', AAN’s Reply 6. True, but its reasoning has
been adopted by subsequent D.C. Circuit panels see, e.g., Univ. of Great Falls v. N.L.R.B., 278
F_3d 1335, 1341(D.C. Cir. 2002); N.Y. N.Y.. LLC v. N.L.R.B.‘ 313 F.3d 585, 590 (D.C. Cir.
2002), and as an expression of the views of nine judges in this circuit, it is as persuasive as non-
precedential authority can be AAN further argues that Akins “reached only the question of
‘whether the Court established a major purpose test,’ and not ‘how such a test is to be
implemented.”’ AAN’s Reply 7 (citing Akins, 101 F.3d at 74041). That is far from clear,
especially given that the language AAN quotes comes from a portion of the Akins opinion that is
merely describing an argument put forth by the FEC (and an argument that is not directly
returned to). ln any event, as described below, the Court does not read Akins broadly to
prescribe de novo review for all FEC actions implicating the major purpose test.
_]2-
ll In case after case, courts have affirmed this fairly intuitive principle, that courts need not,
and should not, defer to agency interpretations of opinions written by courts See, e.g., Nat’l
Ass’n ofl\/lfrs. v. N.L.R.B., 717 F.3d 947, 959 n.17 (D.C. Cir. 20l3) (“[W]e owe no deference to
an agency’s interpretation of judicial precedent.”), overruled on other grounds Arn. Meat Inst. v.
U.S. Dep’t ongric_, 760 F.3d 18 (D.C. Cir. 2014); Univ. of Great Falls v. N.L.R.B_, 278 F.3d
l 1335, 1340-41 (D.C. Cir. 2002) (declining to apply deference where “interpretation of
precedent, rather than a statute” was at issue, especially where that precedent was “based on
constitutional concerns an area of presumed judicial . . . competence”); N.Y. N.Y. LLC v.
N.L.R.B., 313 F.3d 585, 590 (D.C. Cir. 2002) (concluding that, as the agency’s “decisions . . .
purport to rest on [its} interpretation of Supreme Court opinions,” those “judgment[s} [are] not
entitled to judicial deference”); Piersall v. Winter, 507 F. Supp. 2d 23, 38 (D.D.C. 2007) (“The
Court will not defer to lan] agency, however, where the task at hand is judicial interpretation of
judicial decisions[.]”); Mudd v. Caldera, 134 F. Supp. 2d 138, 144 (D.D.C. 2001) (“[T]here is no
law that supports the . . . position that an Article lIl judge must defer to an agency or department
of the Executive Branch or the head of such an agency or department . . . on interpretations of
decisions of the United States Supreme Court; for that is quintessentially a judicial function”).
Accordingly, the Court will not afford deference to the FEC’s interpretation of judicial precedent
defining the protections of the First Amendment and the related contours of Bu_ckley’s major
purpose test.
Certain of CREW’s arguments in this case, however, do not primarily challenge the
FEC’s interpretation of Supreme Court doctrine, constitutional or otherwise Rather, CREW’s
attacks on the FEC’s choice of relevant timespan for assessing an organization’s spending
activity, and on the agency’s purported 50%-plus spending threshold for finding major purpose
_13_
based on expenditures are less about what M (and subsequent precedent) means and more
about how _B_tl_clgley (and the test it created) should be implemented Such implementation
choices, which call on the FEC’s special regulatory expertise, were the types of judgments that
Congress committed to the sound discretion of the agencyl The Supreme Court has described the
FEC as “precisely the type of agency to which deference should presumptively be afforded,”
FEC v. Democratic Senatorial Campaign Comm.. 454 U.S. 27, 37 (1981), since it is vested with
“primary and substantial responsibility for administering and enforcing [FECA],” including the
“sole discretionary power” to initiate enforcement actions, B_ucl_